1. The litigation which has given rise to this appeal was commenced in the year 1905. The predecessor of the appellant, a patnidar, instituted a suit against the predecessor of the respondent, a zamindar, and certain other persons for recovery of possession of certain lands about 82 bighas in area on the allegation that they were Chaukidari Chakran lands included in the Patni mehal, that they had been resumed by the Government and thereafter settled with the zemindar and that the zemindar in his turn had settled the same with those other persons. The trial Court in that suit passed a decree on the 10th January 1906, declaring that the plaintiff in that suit would get possession of the disputed lands on the same terms on which the Government had settled the same as resumed Chaukidari Chakran lands with the zemindar and that the plaintiff would get mesne profits for three years from before the institution of the suit up to the date of his getting possession of the lands--such mesne profits to be determined by the executing department. This decree passed through several Courts either on appeal or on remand and on one occasion it was before the Judicial Committee on an appeal preferred from a decision of this Court. The suit ultimately ended in a decree passed by this Court. On the 27th February 1922, by which so far as the decree relating to mesne profits was concerned it was upheld by this Court. The result was that the appellant, the decree-holder, was entitled under this decree to mesne profits for the period beginning from three years before the institution of the suit and up to the date of his recovering possession under the decree.
2. The appellant obtained possession of the lands under the decree on the 9th September 1917. On the 9th December 1922 he filed an application for ascertainment and recovery of mesne profits from the respondent. The application as originally filed was for recovery of mesne profits from the date of the suit up to the 9th September 1917. Subsequently, however, there was an amendment with the result that the mesne profits were claimed from three years before the institution of the suit up to the 9th September 1917, the date of the recovery of possession. The application was treated as a suit and a decree was passed thereon on the 7th July 1924 and it is against this decree that the present appeal has been preferred. The claim for mesne profits was based upon several grounds, but all that we are concerned with at the present moment in view of the arguments that have been addressed to us are only three questions which are as follows: First, whether mesne profits should be awarded on the basis of such profits as the zemindar makes in respect of the lands or whether it should be awarded on the basis of the produce of the lands, that is to say, such profits as the zemindar as well as tenants who were in actual possession of the land could have made out of them. Secondly, if mesne profits have to be assessed on the basis of the rental, that is to say, on the basis of such profits as the zemindar can make out of the lands, whether such rental should be assessed on the footing that money-rent was realized from the tenants or produce rent was realized from them; thirdly, whether the amount assessed by the learned Subordinate Judge, as representing mesne profits has been correctly assessed by him.
3. The learned Subordinate Judge in an order passed on the 5th February 1924, by which he professed to deal with some of the preliminary questions that arose in the proceedings held that the appellant and the respondent were both big zemindars and were not actual cultivators but mere rent receivers, and that in point of fact the land had been let out to cultivators by the respondent and so the basis of mesne profits should be not the actual produce of the land but the rent received by the zemindar. In this view of the matter the learned Subordinate Judge disposed of the first of the points that have been argued before us and he overruled the contention put forward before him on behalf of the appellant that he was entitled to mesne profits on the footing of such profits as the zamindars derived by receipt of rent from the tenants and such profits also as the tenants used to make on the basis of the produce. The learned Subordinate Judge gave another reason for overruling the appellant's contention and that was that the tenants who had actually cultivated the land were not parties to the proceedings before him and that on that ground the appellant was not entitled to get the value of the actual produce of the lands. So far as this last ground is concerned it does not seem to me to be well founded; for there was a decree passed in favour of the plaintiff and as against the zemindar as well as the tenants jointly, and the omission to make the tenants parties to these proceedings would not disentitle the plaintiff from recovering mesne profits from the zemindar on the footing that all these persons were joint trespassers. It was undoubtedly open to the plaintiff to execute the decree as against any of them. This view receives support from a decision of this Court in the case of Biresshur Dutt Chowdury v. Baroda Prasad Ray 15 C.W.N. 825. But the other reasons which the learned Subordinate Judge has given and to which we have already referred, in my opinion, are sufficient for the purpose of holding that it is on the footing of such profits as the zemindars would make and not on the footing of such profits also as the actual cultivators would make out of the lands that the mesne profits should be assessed. The definition of mesne profits as given in Section 2, Sub-section 12 of the Code clearly indicates that the ordinary use to which the parties would put the land is what should be taken into account in determining mesne profits. The appellant as well as the respondent were receivers of rent and ordinarily they would not cultivate the land in khas and realize the profits of the land. Under the circumstances it seems to me that the principle upon which the learned Subordinate Judge has proceeded is right.
4. As regards the second point, namely, whether mesne profits should be assessed on the basis of money rent or produce rent the position seems to be this. (His Lordship then discussed the evidence and proceeded:) Under the circumstances it cannot be said that the view taken by the Subordinate Judge, namely, that mesne profits should be assessed on the basis of money rent was not a correct one.
5. As regards the third point it is stated that the zemindar has not produced in this case any kabuliyat in respect of the 4 jamas which are referred to in the judgment of the Subordinate Judge. Our attention has been drawn to the kabuliyats which have been marked as Exhibits A to F in this case and it has been urged that they cover only three of these jamas. It appears, however, that some kabuliyats were filed at an earlier stage of these proceedings. This appears in the statement to be found at the foot of the deposition of one of the witnesses. The Subordinate Judge has recorded a clear and positive finding to this effect: The kabuliyats show that the lands were let out as 4 jamas and the aggregate rent recoverable in 1309 was Rs. 210-10 as.' Moreover the Subordinate Judge has referred to the collection papers and on an examination of these papers he has come to the finding that the total collection during the period in question was Rs. 2873-10-6 pies. I am of opinion that the learned Subordinate Judge had materials before him upon which he could come to a conclusion as to what the rent was that was actually recovered by the zemindar from these 4 jamas and there is no reason to differ from the conclusion at which he has arrived on this point. The Subordinate Judge has observed in his judgment that the appellant was entitled to mesne profits on a rent basis and that such profits were not necessarily the rents at which the judgment-debtor actually let out the lands, but what might have been with ordinary diligence received from the tenants on settlement of the lands with them. There were no materials before him upon which he could hold that the lands could be let out on more advantageous terms than upon what they were let out by the zemindar. He added to the rent recoverable for these four jamas cesses that were payable therefor and he deducted from the total amount of the rent that was payable to the zemindar by the patnidar. He made no deduction in respect of the collection charges upon the ground that there was nothing to show that any separate officer was employed for collecting the rents for these four jamas, and I am of opinion that the principle upon which he proceeded was a right one. In this view of the matter it seems to me that the grounds used before us have no substance in them and this appeal must be dismissed with costs hearing-fee five gold mohurs.
6. The respondent has preferred a cross-objection and it has been urged in support of this cross-objection in the first place that deduction should have been made in respect of collection charges; and in the next place it has been urged that the order which the learned Subordinate Judge has passed with regard to interest is not a proper one.
7. As regards collection charges, the learned Subordinate Judge has disallowed the contention in respect thereof upon the ground that there was nothing to show that any expense was separately incurred for making such collection. Moreover it appears that the zemindar has got his cutchery only about three miles away from the place where the lands are situate and under the circumstances it cannot be said that any substantial amount was spent in making the collection.
8. As regards interest, the definition of mesne profits as contained in Section 2, Sub-section 12 of the Code includes interest and it is open to the Court in view of the particular circumstances of the case before it be allow or disallow such interest in making the order with regard to mesne profits. It cannot be said, having regard to the circumstances of the present case that the discretion, which the learned Subordinate Judge has exercised in making the order allowing interest and that at the rate mentioned in the decree was improperly exercised.
9. The result is that the cross-objection is also dismissed with costs bearing fee two gold mohurs.
10. I agree.